United States District Court, Western District of New York
August 16, 1999
GERALD P. OLEJNICZAK AND SANDRA OLEJNICZAK, PLAINTIFFS,
E.I. DU PONT DE NEMOURS AND COMPANY, DEFENDANT.
The opinion of the court was delivered by: Arcara, District Judge.
DECISION AND ORDER
Plaintiffs Gerald P. Olejniczak ("Olejniczak") and his wife,
Sandra Olejniczak, New York state residents, commenced this
action in New York state court in December of 1995, to recover
for injuries incurred by Olejniczak when he allegedly slipped and
fell at a plant operated by defendant E.I. du Pont de Nemours and
Company ("DuPont"), a Delaware corporation. DuPont removed the
action to this court on February 7, 1996, on the basis of
diversity jurisdiction. Following completion of pretrial
discovery, a non-jury trial was held in December of 1998 and
January of 1999.
The Court heard the testimony of approximately sixteen
witnesses over fifteen days of trial. The parties submitted
proposed findings of fact and conclusions of law, and the Court
heard summations on March 25, 1999. For the reasons discussed
below, the Court finds that judgment shall be entered in favor of
defendant DuPont. The following constitutes the Court's findings
of fact and conclusions of law pursuant to Federal Rule of Civil
FINDINGS OF FACT
I. Events of January 19, 1994
At the time of the events in question, Olejniczak was a truck
driver employed by Praxair, Inc., a chemical company. Trial
Transcript ("Tr.") 90. Praxair supplies DuPont with liquid
nitrogen, which DuPont uses at its plant in Tonawanda, New York.
This relationship between Praxair and DuPont is governed to some
an agreement signed by DuPont and Praxair's corporate
predecessor, Union Carbide Corporation's Linde Division, on May
24, 1979.*fn1 See Plaintiff's Exhibit ("P.Ex.") 1. On January
19, 1994, Olejniczak set out from Praxair to make a delivery of
nitrogen to DuPont's Tonawanda plant. Tr. 261
Olejniczak testified that he fell while at DuPont's plant that
day. There were no other witnesses to the fall. Thus, the
following paragraphs set forth Olejniczak's account of the
circumstances of the fall.*fn2
According to Olejniczak, he arrived at the DuPont plant at
approximately 11:00 a.m.*fn3 He pulled his tanker truck up onto
the concrete pad upon which DuPont's nitrogen tank is located.
Tr. 270, 682. As it was an extremely cold winter day, he put on a
parka and a pair of overboots before leaving the cab of his
truck. Tr. 594-95. He informed an unidentified DuPont employee in
the control room near the nitrogen tank that he was there to
deliver nitrogen and then hooked up the lines from his truck to
the nitrogen tank. Tr. 683. An unidentified DuPont lab technician
came out to the truck, did routine testing on the contents of the
tanker truck, and left.
Olejniczak testified that he then tried to unload the nitrogen
but was unable to operate the pumping system, presumably because
of the extremely cold temperatures. Tr. 685. He entered the
control room, called Praxair, and discussed with an unidentified
Praxair employee the problem he was having unloading the
nitrogen. Tr. 686. Olejniczak then went back out to the truck,
again tried to unload the nitrogen, and again was unsuccessful.
Tr. 686-87. He then returned to the control room and called
Praxair a second time. Tr. 687. The unidentified Praxair employee
instructed Olejniczak to ask a DuPont employee if he could use a
steam hose to heat up the lines on the truck. Tr. 687.
Pursuant to these instructions, Olejniczak asked the control
room operator if he could use the steam hose DuPont kept near the
nitrogen tank. Tr. 688. The control room operator, whose name
Olejniczak cannot recall, agreed to allow Olejniczak to use the
steam hose, went outside with him, and hooked up the hose for
him. Tr. 688. Olejniczak wedged the steam hose into the back of
the tanker, where the valves were located, and for some time
directed the steam at the back of the tanker. Tr. 688-89. When
this method proved unsuccessful, Olejniczak took the hose and
walked up and down the side of the tanker while spraying it with
steam to try to heat up the lines to allow the nitrogen to flow
through them. Tr. 690.
It was at this time that Olejniczak claims that he fell. At
trial, Olejniczak described the accident as follows:
At one point it felt like the hose had gotten hooked
on something. I turned to see what it was, and I
noticed that an area back towards the end of the hose
had melted into the ice and the hard
packed snow. I turned around and I gave it a little
pull or tug, and that's when my feet came from
underneath me, because I was standing on ice and hard
packed snow. And I went right down into a sitting
Tr. 599-600. Olejniczak testified that when he fell he felt a
"sharp jolt" and a "slight twinge in his back." Tr. 600. After
pulling himself up, he went back into the control room. Tr. 605.
Olejniczak called Praxair again, told the unidentified person he
was speaking to that he had fallen, and was instructed to bring
the truck back to Praxair. Tr. 608. According to plaintiff, he
also informed an unidentified person at DuPont that he had
fallen, and that person "turned around and just walked away from
me." Tr. 609. Olejniczak then returned to his truck and drove
back to the Praxair facility.
Olejniczak testified that when he left DuPont it was
approximately 2:15 p.m. Tr. 275. Thus, he was at the DuPont plant
for about three hours and fifteen minutes that day. Tr. 275.
II. Olejniczak's Credibility
As the trier of fact, the Court must assess the credibility of
the witnesses at trial. Here, Olejniczak's credibility is of
pivotal importance; as his accident was unwitnessed, and there
are no contemporaneously created reports documenting the
accident, he is the sole source of information about the
accident. After observing Olejniczak testify over the course of
several days, the Court finds that Olejniczak is not a wholly
The Court bases this finding on several facts. First, during
the course of the trial, Olejniczak admitted that he had lied
under oath during his deposition. For example, when asked at
deposition whether he had ever been arrested, he responded that
he had not. Tr. 666. At trial, however, he testified that he had
been arrested once and admitted that his deposition testimony was
not true. Tr. 665-66. Similarly, Olejniczak admitted that he lied
at his deposition when he denied ever being on probation or ever
appearing before family court. Tr. 667-68. The Court, of course,
is hesitant to credit a witness who admits to having lied under
oath. Moreover, to explain why he had lied at his deposition,
Olejniczak stated that "[i]t was none of her [defendant's
counsel's] business, because it did not have anything to do with
my accident." Tr. 666. This explanation causes the Court to be
wary to credit Olejniczak's testimony, as it evidences a belief
by Olejniczak that he was free to pick and choose when he would
tell the truth under oath and when he would not.
Olejniczak also appeared to be less than forthcoming regarding
prior accidents and injuries. On Friday, December 4, 1998,
Olejniczak was questioned on direct examination about his various
prior injuries. After Olejniczak had described several injuries,
plaintiffs' counsel asked him whether he had sustained any other
injuries prior to the date of the accident, to which he responded
that he had not. Tr. 227-28. Counsel for plaintiffs then asked
Olejniczak whether he had ever sustained any injuries to his
lower back. Olejniczak again replied that he had not. Tr. 228. At
that point, counsel for defendant asked the court reporter to
mark that part of the record. The following Monday, December 7,
1998, when Olejniczak resumed his testimony, he testified that
"over the weekend I had remembered a few facts that I forgot to
tell you on questioning me about injuries." Tr. 291. Olejniczak
then went on to reveal several more injuries he had sustained,
including one injury to his back. Tr. 295. Olejniczak testified
that he had spoken to his mother over the course of the
intervening weekend, and that she had reminded him of those
injuries. Tr. 291. It appeared to the Court, however, that after
Olejniczak heard defendant's counsel's request to mark the
record, Olejniczak reconsidered his initial hesitance to
truthfully reveal all his prior injuries.
Further, Olejniczak's testimony was not altogether credible
with respect to events on the day of the accident. When asked at
his deposition what caused his feet to come out from under him,
Olejniczak responded, "I don't know. They just did." Tr. 715.
Later, at trial, Olejniczak answered the same question
differently, stating, "I was standing on hard pack ice, snow and
ice. It was slippery and that's what really caused me to fall."
Tr. 714. The Court finds this change of testimony highly
suspect.*fn4 Moreover, throughout the course of his trial
testimony, Olejniczak repeatedly described the ground conditions
with the phrase "hard packed snow and ice." See, e.g., Tr. 504,
505, 596. His rote repetition of this phrase reduced his
credibility on the important subject of the weather and ground
conditions on the day of the accident.
Moreover, the Court notes that both of the DuPont employees who
worked on January 19, 1994 as control room operators testified at
trial. See Tr. 2086 et seq. (testimony of Michael Gross); Tr.
2351 et seq. (testimony of Ken Stahl). Neither one recalled the
specific events of January 19, 1994 or a truck having delivery
problems that day. Tr. 2208, 2217, 2403. The fact that neither of
these witnesses recalled the events described by Olejniczak — a
truck driver who fell after spending over three hours attempting
to unload his tanker on the coldest day of the year — causes the
Court to be suspect of Olejniczak's testimony.
III. Weather and Ground Conditions at DuPont Plant on January
Important issues in the determination of this case are the
weather conditions and the condition of the ground where
Olejniczak fell on January 19, 1994.
A. Weather Conditions
Evidence was presented at trial regarding the weather
conditions before and during the time of Olejniczak's alleged
fall. According to Olejniczak, on that day, "[i]t was extremely
cold. It was below zero," Tr. 253, and "[t]he roads had a light
covering of snow on it because it snowed during the night. And it
was extremely cold and there was wind blowing." Tr. 254.
Another witness who testified about the weather conditions on
January 19, 1994 was Jonathan Owczarek. Owczarek worked as a
security guard for a company with which DuPont contracted to
provide security at the Tonawanda plant. Tr. 1852, 1854.
Owczarek's responsibility at the plant was to man the guard house
located at the plant's main entrance. Tr. 1857. Referring to the
report he filled out on January 19, 1994, Owczarek testified that
on that day he had to scrape ice and frost off the windows on the
doors to the guard house. He stated that, "it was so icy, the
whole door was just pure ice. You could not see through it. And
we had to scrape it, it was so icy." Tr. 1897. Owczarek further
testified that it was extremely cold, and that it was the only
day he had ever had to scrape ice off the windows. Tr. 1898.*fn5
Additional evidence regarding weather conditions was presented
in the form of an
exhibit, a monthly summary of climatological data prepared by the
United States Department of Commerce, dated April 22, 1994. See
D.Ex. 8. That exhibit shows the weather conditions recorded at
the Buffalo Airport on, inter alia, January 19, 1994.*fn6
Id. The temperature that day ranged from one degree below zero
to ten degrees below zero on the Fahrenheit scale. Tr. 2138-39.
The exhibit also showed that at 10:00 a.m. on January 19, 1994,
there was blowing snow, the temperature was nine degrees below
zero, and the wind speed was 18 knots. Tr. 2149. At 1:00 p.m.
that day, there were snow showers and blowing snow, the
temperature was four degrees below zero, and the wind speed was
18 knots. Tr. 2152.
B. Ground Conditions
At trial, Olejniczak repeatedly testified that the ground where
he fell consisted of "hard packed snow and ice." Tr. 504, 505,
596. He further testified that there was "no salt, no sand, no
nothing" spread on the ground. Tr. 505. However, he did testify
that the ground "looked like it had been freshly plowed." Tr.
Alfred Zuzze, a DuPont employee, testified about snow removal
procedures at DuPont. Zuzze was employed in DuPont's service
department, which is responsible for snow removal, from September
1994 until 1995.*fn7 Tr. 1580, 1582, 1587. Zuzze testified that
he has been plowing snow for approximately twenty-five years, and
that he owns a business that performs snow removal services for
other businesses. Tr. 1681-82, 1706. Zuzze testified that in
1994, DuPont owned several pieces of snow removal equipment,
including four wheel drive pick-ups equipped with plow blades,
and a tractor with a front-mounted plow and a rear-mounted
salter. Tr. 1584-85.
Zuzze further testified about the standard snow removal
procedures in place in 1994. Apparently there was no written
manual regarding snow removal procedures at the plant. Tr. 1595,
1614. He testified that members of the Service Department would
arrive two hours early in the winter months. They would clear the
walkways and roadways of the forty acre plant site first. Tr.
1592. Zuzze testified that as part of the standard operating
procedure, during this "opening pass" of the plant,
The tractor operator would be driving from east to
west, plowing as he drove, in front of the nitrogen
tank. He would push snow past the nitrogen tank,
stop, back up, pull up to the skirt on the nitrogen
tank, it's like a ramp, lower the blade, and back
drag that ramp.
Tr. 1611. Zuzze explained that plow blades, such as those used at
DuPont, are raised on "skids," which keep the edge of the plow
blade a short distance off the ground. Tr. 1706-08.
After removing the snow, the operator would "come back in and
turn on the salter and salt the area that he just plowed." Tr.
1612-13. Zuzze also testified that at temperatures below zero
degrees, salt will not effectively melt ice. Tr. 1691. Zuzze
testified that DuPont does not, and to the best of his knowledge
never has, spread sand over snow and ice. Tr. 1682. He also
testified that he is unaware of any businesses in the Western New
York area that do use sand. Tr. 1706.
As already discussed above, the Court has found that Olejniczak
is not an entirely credible witness, especially regarding his
testimony about the ground conditions and
the cause of his fall. In light of the credibility problems with
Olejniczak's testimony, the Court finds that it is more likely
that the ground conditions on January 19, 1994 were in accord
with the standard procedures described by Zuzze. Pursuant to
those procedures, it is highly likely that the area around the
nitrogen tank, where Olejniczak fell, was plowed and salted.*fn8
The Court does not credit Olejniczak's testimony to the contrary.
IV. Olejniczak's Injury
Olejniczak testified that upon returning to Praxair, he was
experiencing "a lot of pain" in his back, so he telephoned his
wife to come and pick him up at Praxair. Tr. 289. Olejniczak's
wife did so and took him to the Mercy Ambulatory Care Center,
where he was seen by a doctor. Tr. 290. The following day,
Olejniczak was still experiencing pain, so he saw his own
physician, who prescribed pain medication and rest. Tr. 298.
Olejniczak was unable to return to work and over the course of
the next year continued to have problems with severe back pain.
He saw several different physicians, had many tests done, and was
prescribed various pain medications and therapies. Tr. 310-17.
These attempts proved unsuccessful at treating Olejniczak's pain,
and so in April of 1995 he underwent surgery at Buffalo General
Hospital. Tr. 319.
Dr. James Egnatchik, Olejniczak's surgeon, testified at trial
that he performed "a left L-5 — S1 diskectomy and fusion with
iliac crest bone." Tr. 1071. Olejniczak initially obtained some
relief from the first surgery, but by November of 1995 his pain
returned. Tr. 322-32. Olejniczak's problems with back pain
worsened until the end of July or beginning of August of 1996,
when Dr. Egnatchik performed a second surgery on him at Buffalo
General Hospital. Tr. 339-43. That surgery succeeded in reducing
Olejniczak's pain, although he still today experiences some pain
and is limited in his physical activities. Tr. 355-58.
Olejniczak has never been able to return to work and
accordingly receives Workers' Compensation payments, Social
Security Disability Benefits, a Teamsters' disability pension,
and Veterans' Administration benefits. Some of these payments
appear to be received by Olejniczak for his various other health
problems, including diabetes and post traumatic stress disorder,
as well as for his back injury. In all, Olejniczak currently
receives approximately $4,600 per month — $55,200 per year — from
these sources. Tr. 359, 361-62.
Dr. George Kartalian, an expert witness who testified for the
plaintiffs, testified about his examination of Olejniczak in
September of 1996. Dr. Kartalian stated that in his opinion,
Olejniczak had, a "moderate to marked permanent disability" as a
result of the January 19, 1994 injury. Tr. 416, 419.
Olejniczak also testified that since the accident, he has been
unable to have a satisfying intimate relationship with his wife.
Tr. 367-68. Mrs. Olejniczak testified to this effect as well. Tr.
993-94. Additionally, Mrs. Olejniczak testified that Olejniczak
is now unable to perform routine household chores that he used to
perform before the accident. Tr. 992.
CONCLUSIONS OF LAW
I. Elements of Plaintiff's Negligence Claim
The parties do not dispute that New York substantive law is
controlling in this diversity action. Under New York law, a
plaintiff must prove the following elements to establish a cause
of action based on negligence: (1) the existence of a legal duty;
(2) a breach of that duty; (3) that the breach was the proximate
the injury; and (4) damages. See Ellis v. Mildred Elley School
Inc., 245 A.D.2d 994, 667 N.Y.S.2d 86, 87 (1997); see also
Japan Airlines Co., Ltd. v. Port Authority of New York and New
Jersey, 178 F.3d 103 (2d Cir. 1999) (listing the four elements
as: "(1) that there was a duty owed to the plaintiff, (2) lack of
due care by the defendant, (3) injury, and (4) the injury was
proximately caused by the defendant's breach of duty.").
Moreover, "[i]t is well settled that a property owner may not be
held liable for snowy or icy conditions unless it has actual
notice thereof or it has had a reasonably sufficient time from
the cessation of the precipitation to remedy the conditions
caused thereby." Baum v. Knoll Farm, 259 A.D.2d 456,
686 N.Y.S.2d 83 (1999).
A. Breach of Duty
The parties have set forth several different standards that
they argue should be applied in this case to determine whether
DuPont breached the duty of care it owed to a person in
Olejniczak's position. DuPont argues that the "storm in progress"
doctrine applies to determine the duty of care and whether a
breach occurred, or, in the alternative, that the standard
applied should be the duty generally applicable in a negligence
action. Olejniczak argues that a heightened duty of care standard
must be applied. Each of these three standards is discussed
below. Under any of these standards, Olejniczak has failed to
proved by a preponderance of the evidence that DuPont breached
the duty it owed to him.
1. Storm in Progress Doctrine
Under New York law, when ruling on a tort action involving a
plaintiff's fall on snow or ice, a special rule comes into play.
Under the "storm in progress" doctrine, "a landowner has a
reasonable time in which to address a storm-related snow or ice
condition on its property subsequent to the cessation of the
storm and is not required to take any corrective actions while a
storm is still in progress." Reynolds v. Sead Development
Group, 257 A.D.2d 940, 684 N.Y.S.2d 361 (1999). Thus, in cases
where plaintiffs have sued for injuries sustained from falling on
snow or ice, New York courts have granted judgment in favor of
the defendants if the evidence shows that a storm was in progress
at the time of the plaintiffs' fall. See, e.g., id. at 362;
Micheler v. Gush, 256 A.D.2d 1051, 684 N.Y.S.2d 297, 298
(1998); Swartz v. Liberatore, 254 A.D.2d 692, 678 N.Y.S.2d 552
(1998); Zonitch v. Plaza at Latham L.L.C., 255 A.D.2d 808,
680 N.Y.S.2d 304, 305 (1998); Jensen v. Roohan, 233 A.D.2d 587,
649 N.Y.S.2d 100, 100 (1996); Zima v. North Colonie Central Sch.
Dist., 225 A.D.2d 993, 639 N.Y.S.2d 558, 558 (1996).
The storm in progress doctrine is not limited to situations
where blizzard conditions exist; it also applies in situations
where there is some type of less severe, yet still inclement,
winter weather. See Micheler, 684 N.Y.S.2d at 298 (finding
storm in progress doctrine barred liability for defendant where
"ice on which plaintiff slipped was produced by winter weather
conditions — namely, a drizzling rain coupled with falling
temperatures"); Zonitch, 680 N.Y.S.2d at 305 (holding that
"like icy sidewalks and snow-covered parking lots, a wet,
slippery entranceway, caused by tracked-in snow and slush, is a
reality of winter weather which a landowner ordinarily is not
required to rectify until the underlying weather condition has
abated"); Zima, 225 A.D.2d 993, 639 N.Y.S.2d 558, 558 (finding
that "although it is clear that no major winter storm occurred at
the time of the accident, the undisputed proof sufficiently
establishes the existence of an ongoing hazardous weather
condition that defendant was under no obligation to correct until
a reasonable time after it had ended"); Boyko v. Limowski,
223 A.D.2d 962, 636 N.Y.S.2d 901, 902 (1996) (stating that the storm
in progress doctrine "affords landowners a reasonable time after
the cessation of a storm or temperature
fluctuations which created the hazardous condition to take
corrective action") (emphasis added).
Applying the storm in progress doctrine to the facts of this
case, the Court finds that defendant was under no duty to correct
any icy conditions that may have existed at the DuPont plant at
the time plaintiff fell. The evidence presented at trial
established that the inclement weather conditions which existed
prior to and at the time of Olejniczak's fall were unusually
severe for the Western New York area. The extreme cold, the high
winds, and the blowing snow combined to create an ongoing
hazardous situation at the time of the fall which DuPont was
under no duty to correct until a reasonable time after those
2. General Duty of Reasonable Care
Even if the storm in progress doctrine did not apply, DuPont
could not be found to have breached the duty it owed to
Olejniczak. Under New York law, a "landowner must act as a
reasonable [person] in maintaining his property in a reasonably
safe condition in view of all the circumstances, including the
likelihood of injury to others, the seriousness of the injury,
and the burden of avoiding the risk." Basso v. Miller,
40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868 (1976). The
Court finds that there is no evidence that DuPont did not act
reasonably under all the circumstances present on January 19,
1994. There is no credible evidence that DuPont did not follow
its standard procedure for snow removal — plowing and salting the
area where Olejniczak fell — on that day. Although these
procedures may not have cleared the area down to the bare
pavement, it is simply a reality of wintertime in Western New
York that at times it is nearly impossible to completely clear
pavement, especially under circumstances like those on the day of
the accident, with extremely cold temperatures and blowing snow.
Thus, even if the storm in progress rule did not apply, DuPont
would not be liable for Olejniczak's injuries, as it did not
breach the duty of care owed to him.
3. Heightened Duty of Care
Olejniczak has argued that the supply contract between DuPont
and Praxair's corporate predecessor*fn10 augments the common law
duty owed by DuPont to Praxair's employees. Olejniczak further
argues that DuPont breached this heightened duty of care and thus
is liable for his injuries. See Plaintiff's Proposed Findings
of Fact and Conclusions of Law, Item No. 68, at 12.
The Court is unpersuaded by this argument. As an initial
matter, it is dubious whether this particular contract, which
contains no language about snow removal or about maintenance of
the area around the tank, would create a higher duty in this
instance, as Olejniczak suggests. Even if such a higher duty were
created, however, the Court finds that DuPont did not breach this
duty. As the Court has found, it is more likely than not that
DuPont plowed the area around the tank and then salted it. Under
even a heightened standard of care, in light of the weather
conditions that day, DuPont cannot be found to have been
negligent in taking these steps to deal with the hazardous
situation created by the weather.
Even if DuPont were found to have breached its duty of care,
action would fail because Olejniczak failed to prove that
DuPont's negligence was the proximate cause of his fall. A
negligent act is considered the proximate cause of an injury if
that act was a substantial factor in bringing about the injury.
See Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 429 N.Y.S.2d 606,
614, 407 N.E.2d 451 (1980) ("it was plaintiffs' burden to
show that defendants' conduct was a substantial causative factor
in the sequence of events that led to [plaintiff's] injury"). The
Court has found above that Olejniczak's testimony regarding the
cause of his fall is plagued with credibility problems,
especially since Olejniczak's testimony at trial regarding the
cause of his fall was different from his testimony on this issue
at his deposition. Since there is a lack of credible testimony
regarding the cause of Olejniczak's fall, the Court finds that he
has failed to prove this essential element of his negligence
Olejniczak's claim must also be dismissed as there was
insufficient evidence presented that DuPont had either actual or
constructive notice that a dangerous condition existed. It is
established under New York law that liability for a dangerous
condition exists only where the defendant has notice, either
actual or constructive, of the dangerous condition. See
Schleifman v. Prime Hospitality Corp., 246 A.D.2d 789,
668 N.Y.S.2d 258, 260 (1998). Here, there was no evidence presented
that DuPont had actual notice; thus, Olejniczak's claim can only
succeed if there is sufficient evidence of constructive notice.
To prove constructive notice, "plaintiff must demonstrate that
the icy condition was visible and apparent, and had existed for a
sufficient period of time to allow defendant's personnel to
discover and remedy it." Id. Olejniczak presented no evidence
that the slippery conditions which he claims caused his fall had
existed for a sufficient amount of time prior to the fall to
allow DuPont's employees to discover it. Thus, Olejniczak's claim
must also be dismissed for failure to prove notice.
As the Court has concluded that Olejniczak's claim fails on all
the grounds discussed above, the Court will not reach the issue
II. Mrs. Olejniczak's Loss of Consortium Claim
As plaintiff's claim is to be dismissed, Mrs. Olejniczak's
derivative claim must also be dismissed. See Holmes v. City of
New Rochelle, 190 A.D.2d 713, 593 N.Y.S.2d 320, 321 (1993)
("Since the cause of action to recover damages for loss of
consortium is derivative in nature, the dismissal of the primary
causes of action necessitates the dismissal of that cause of
action as well").
For the reasons discussed above, the Court finds in favor of
defendant DuPont. The Clerk of Court is hereby ordered to enter
judgment in favor of defendant and to take all steps necessary to
close this case.
IT IS SO ORDERED.